United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION AND ORDER
R. WILHOIT UNITED STATES DISTRICT JUDGE
Silverburg is a pre-trial detainee currently incarcerated at
the Madison County Detention Center ("MCDC") in
Richmond, Kentucky. Proceeding without an attorney,
Silverburg attempted to initiate this action by filing a
document styled as a "Motion for Temporary Injunction,
" which was docketed as a civil action for
administrative purposes. [D.E. No. 1] In this filing,
Silverburg claimed that he was improperly transferred from
the Fayette County Detention Center ("FCDC") in
Lexington, Kentucky to the MCDC because of grievances that he
filed while housed at the FCDC. However, Silverburg's
filing was insufficient to constitute a complaint. In
addition, Silverburg failed to pay the $400.00 required
filing and administrative fees. Although he did file a motion
to proceed in forma pauperis, it was not supported
by a certificate of inmate account (certified by prison
staff) as required by 28 U.S.C. § 1915(a)(2).
Accordingly, the Court entered an Order notifying Silverburg
of these deficiencies and advising him that, if he wished to
seek relief from the Court, he must first file a formal
complaint on a court-supplied form and either pay the $350.00
filing fee and the $50.00 administrative fee or file a motion
to pay it in installments under 28 U.S.C. § 1915. [D.E.
has now submitted a complaint [D.E. No. 6], a motion for
leave to proceed in forma pauperis [D.E. No. 7], and
a copy of his prisoner trust fund account statement. [D.E.
No. 8] However, the prisoner trust fund account statement
submitted by Silverburg, while purportedly certified by a
prison official, contains no information regarding
Silverburg's inmate account. Notwithstanding
Silverburg's failure to comply with the Court's prior
Order, the Court will grant the request on the terms
established by 28 U.S.C. § 1915(b). Because Silverburg
has been granted pauper status in this proceeding,
the $50.00 administrative fee is waived. District Court
Miscellaneous Fee Schedule, § 14.
Court must conduct a preliminary review of Silverburg's
complaint pursuant to 28 U.S.C. §§ 1915(e)(2),
1915A. A district court must dismiss any claim that is
frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. McGore v.
Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997),
abrogated on other grounds, Jones v. Bock, 549 U.S.
Court evaluates Silverburg's complaint under a more
lenient standard because he is not represented by an
attorney. Erickson v. Pardus, 551 U.S. 89, 94
(2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir.
2003). At this stage, the Court accepts the plaintiffs
factual allegations as true, and his legal claims are
liberally construed in his favor. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007). However, the
principles requiring generous construction of pro se
pleadings are not without limits. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989); Wilson v. Lexington
Fayette Urban County Government, No. 07-cv-95-KSF, 2007
WL 1136743 (E.D. Ky. April 16, 2007). A complaint must set
forth claims in a clear and concise manner, and must contain
sufficient factual matter, accepted as true, to "state a
claim to relief that is plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010).
See also Fed. R. Civ. P. 8.
complaint, Silverburg alleges that he participated in a
meeting on August 26, 2019 with officials at the FCDC
regarding "numerous grievances" that he had filed
at the FCDC. He further alleges that, after the meeting, he
wrote to FCDC Deputy Director Byrne stating that he was going
to file an affidavit with the FBI regarding threats allegedly
made to him during the meeting by a prison official. He then
alleges that he was "arbitrarily" transferred from
the FCDC to the MCDC on September 6, 2019 in violation of
K.R.S. §§ 441.520 and 441.530. According to
Silverburg, after arriving at MCDC, he was told by officials
that he was transferred as a "favor" to FCDC
officials. He also states that he was told by Tammy Allen,
Deputy Jailer Class-D Coordinator at the MCDC, that all of
the jailers in Kentucky have an "agreement" to
transfer inmates when needed. Silverburg alleges that the
jailers participating in such an agreement are engaging in
criminal fraud against the Counties and the Commonwealth of
Kentucky in violation of 18 U.S.C. § 1961. He further
alleges that such transfers of pre-trial detainees
"deprives the Circuit Courts of Jurisdiction of the
transferred inmate as is violative of plaintiffs Fifth,
Sixth, Eighth, and Fourteenth Amendment rights."
Finally, he alleges that he is being "falsely imprisoned
by defendant [MCDC Director] Steve Tussey in violation of
plaintiffs Fourteen Amendment right and is entitled to his
immediate release as pretrial detainee." He further
alleges that the MCDC is overcrowded and dangerous and he has
been forced to sleep on the floor. Finally, he states that
his money and funds were not transferred with him, thus he
has been unable to call or confer with his "criminal
attorney 'Public Defender, '" for his upcoming
criminal trial in Fayette County Circuit Court in
Commonwealth v. Silverburg, 19-CR-820 (Fayette Cir.
brings his claims against Defendants Steve Haney (Director of
FCDC), Steve Tussey (Director of MCDC), Tammy Allen (Deputy
Jailer at MCDC), Tom Jones (Chief Deputy at MCDC) and Byrne
(Deputy Director at FCDC). He concedes that he has not filed
a grievance related to any of these issues, but he claims
that they are non-grievable as the "issues involve[d]
are failure of county jail officials to comply and follow
[K.R.S. §§] 441.520 and 441.530." As relief,
he seeks "an order directing the defendants [to] release
the plaintiff from their custody including the Fayette
Circuit Court." He also seeks punitive and compensatory
damages, as well as injunctive relief prohibiting county jail
officials from "arbitrarily transferring pre-trial
detainees in violation of KRS §§ 441.520 and
complaint must be dismissed for multiple reasons. As a
threshold matter, Silverburg's complaint seeks relief
properly sought only through a habeas corpus petition, not a
civil rights complaint. The United States Supreme Court held
long ago that "when a state prisoner is challenging the
very fact or duration of his physical imprisonment, and the
relief he seeks is a determination that he is entitled to
immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas
corpus." Preiser v. Rodriguez, 411 U.S. 475,
500 (1973). Indeed, the Court specifically noted that, where
the petitioner's challenge to his custody is that
"he is unlawfully confined in the wrong
institution...his grievance is that he is being unlawfully
subjected to physical restraint, and.. .habeas corpus has
been accepted as the specific instrument to obtain release
from such confinement." Id. at 486 (citations
to the extent that Silverburg claims that he was transferred
to MCDC in violation of his constitutional rights, it has
long been held that "[a]n inmate has no liberty interest
in being placed in any particular penal institution, Olim
v. Wakinekona, 461 U.S. 238, 247 (1983), or classified
at any particular security level, Hewitt v. Helms,
459 U.S. 460, 468 (1983), overruled in part on other
grounds by Sandin v. Conner, 515 U.S. 472 (1995), and
hence no rights protected by the Due Process Clause in that
regard. Sandin, 515 U.S. at 484-86. See also
Wilkinson v. Austin, 545 U.S. 209, 221 (2005) ("...
the Constitution itself does not give rise to a liberty
interest in avoiding transfer to more adverse conditions of
confinement.") (citation omitted).
addition, placement and classification decisions with respect
to state prisoners are within the discretion of jail or
prison officials, see e.g., 501 Ky. Admin. Regs.
3:110, and the Court sees no reason to interfere with these
decisions, even if it has the authority to do so. See
LaFountain v. Harry, 716 F.3d 944, 948 (6th Cir.
2013)("Absent unusual circumstances, prison officials,
rather than judges, should decide where a particular prisoner
should be housed."). See also Betterman v.
Montana, 136 S.Ct. 1609, 1618 n. 9 (2016); Meachum
v. Fano, 427 U.S. 215, 224 (1976) ("The
Constitution does not require that the State have more than
one prison for convicted felons; nor does it guarantee that
the convicted prisoner will be placed in any particular
prison, if, as is likely, the State has more than one
correctional institution."); Ward v. Dyke, 58
F.3d 271, 274 (6th Cir. 1995) ("Prisoners do not have a
constitutional right to be incarcerated in any particular
institution."); Archer v. Reno, 877 F.Supp.
372, 377-78 (E.D. Ky. 1995) ("The district courts are
not authorized to order that an inmate be placed in a
extent that Silverburg argues that his transfer from Fayette
County to neighboring Madison County interfered with his
Sixth Amendment right to counsel, the Sixth Amendment does
not require that he be confined in the same county as his
criminal counsel. Indeed, it is not unusual for attorneys in
Fayette County to represent criminal defendants in
surrounding counties and vice versa. Further, if a pretrial
detainee complains of matters regarding his confinement or
prosecution, but he has had appointed defense counsel at all
times during the complained-of events, he has not been denied
access to the courts. See Caton v. Maze, 995 F.2d
881 (8th Cir.) (per curiam), cert, denied, 510 U.S.
967, 114 S.Ct. 447, 126 L.Ed.2d 381 (1993); Johnson-el v.
Schoemehl, 878 F.2d 1043, 1052 (8th Cir. 1989). And
although Silverburg claims that the failure of jail officials
to transfer his funds from FCDC to MCDC is impeding his right
to counsel, he states that he is being represented in his
criminal matter by a public defender, thus he is not paying
addition, Silverburg's claim that his transfer violates
KRS §§ 441.520 and 441.530 is simply incorrect. KRS
§ 441.520 provides that a Circuit Judge may order the
transport of a prisoner to a nearby county in circumstances
where there is no jail in the county, the jail is insecure,
or there is probable danger to a person confined in the jail.
KRS § 441.520. In turn, KRS § 441.530 sets forth
the manner of transferring a prisoner in such a situation,
including the compensation of officers and computation of
expenses. KRS. § 441.530. However, nothing in either of
these statutes precludes prison officials from transporting
prisoners without such an order from a Circuit Court.
Silverburg also overlooks KRS § 441.025, which
specifically authorizes Kentucky counties to enter into
agreements with other counties to hold prisoners ...